Sri. Thippeswamy C vs The State
2021 Latest Caselaw 2806 Kant

                                1


            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

         DATED THIS THE 15TH DAY OF JULY, 2021

                          BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

     WRIT PETITION NOS.17212-17213/2017 (GM-RES)


BETWEEN:

1.     Sri Thippeswamy C.,
       S/o. Chowdaiah
       Age: 42 years, Working as
       Motor Vehicle Inspector
       Office of the Regional Transport
       Officer, Kolar

2.     Sri Govind L. Rathod
       S/o. Lalu Rathod
       Age: 40 years, Working as
       Motor Vehicle Inspector
       Office of the Joint Commissioner
       Of Transport, Bangalore
                                           ... Petitioners

(By Sri M. S. Bhagwat and
Sri Ravi B. Patil, Advocates)


AND:

Lokayuktha Police
Represented by its Police
Inspector, Bidar - 585401
                                          ... Respondent

(By Sri Subhash Mallapur, SPL.P.P)
                                   2


      This Writ Petition is filed under Article 226 of the
Constitution of India read with Section 482 of Cr.P.C.
praying to issue a writ or order quashing the charge sheet
and all proceedings in Spl.C.(PC) No.24/2017 pending on
the file of the Principal District and Sessions Judge, Bidar
(Annexure-A) including the order dated 04.04.2017 passed
by   the   Principal   District   and   Sessions   Judge,   Bidar
(Annexure-B) in so far as the petitioners (Accused Nos.2
and 1) are concerned and pass any other order as this
Court deems fit.


      This writ petition having been heard and reserved for
Orders on 23.06.2021, coming on for 'Pronouncement of
Orders' this day, the Court made the following:


                           ORDER

The petitioners, who are arrayed as accused Nos.2

and 1 respectively have filed this writ petition for quashing

the charge sheet and all the proceedings in Special Case

(PC) No.24/2017, pending on the file of Principal District

and Sessions Judge, Bidar including the order dated

04.04.2017 passed by the Principal District and Sessions

Judge, Bidar.

2. The brief factual matrix, which are evident

from the records are that the Lokayukta Police on the basis

of the credible information on 28.11.2012 regarding

Regional Transport Officers (RTO) in Humnabad Town,

were collecting penalty and additional amount from various

vehicles plying on National Highway, then the complainant

along with staff members proceeded to Check Post and got

confirmed the information. Then, on the basis of this

information, the FIR was registered and a raid was

conducted over Humnabad RTO Check Post by drawing a

mahazar. The present petitioners, who are arrayed as

accused Nos.2 and 1 were working as Motor Vehicle

Inspectors in the said Check Post during the said period.

3. As per the allegations and mahazar, at the

time of the raid, the present petitioners and other persons

by name, Mohammed Ibrahim, Rohit Kumar, Assistant

Regional Transport Officer (ARTO) - Abdul Wajid and ARTO

jeep driver Abdul Rasheed were also present. They found

Rs.4,700/- near the table of the Check Post and enquired

petitioner No.2 herein and he confirmed that the said

amount was recovered by way of penalty. However, on

verification, it is found that the said amount was not

tallying with the receipts, as the receipts disclosed

Rs.6,800/- was recovered and there was shortage of

Rs.2,100/- and there is no explanation in this regard.

Hence, the said amount was seized. A private person by

name Mohammed Ibrahim was also found in the Check

Post and in his right side pant pocket, Rs.13,000/- was

found and he did not gave any proper explanation. One

Rohit Kumar, who was a private driver of petitioner No.2

was found in possession of Rs.5,115/- and he did not give

any explanation as to how he acquired the said amount.

The ARTO - Abdul Wajid, who was present there, pleaded

ignorance and he was found in possessions of Rs.1,050/-.

The investigating officer has secured the cash register and

verified, but, that was not declared. When petitioner No.1

was checked, he was found in possession of Rs.630/-.

But, he made declaration of Rs.2,800/- and he only

asserted that balance amount was spent by him and he

has not given any details in this regard. Rs.500/- was

recovered from petitioner No.1 and same was returned to

him as it was declared. Further, a cash of Rs.2,45,784/-

was also found in the bag of R.C.Kulkarni - FDA. But, it

was found to be accounted and same was returned. One

Shankar Rao Kulkarni was also present and he was found

in possession of Rs.12,000/-. But, he has produced receipt

for having drawn the said amount and the same was also

returned to him. The investigating officer found that the

amount found with the RTO officials were not properly

explained and Rs.13,000/- recovered was from a third

person at a particular point of time and Rs.5,115/- was

recovered from a private driver of petitioner No.2 and they

were not accounted. Hence, the same was seized by the

investigating officer by drawing a mahazar. Subsequently,

the investigating officer has investigated the matter and

offered an opportunity to explain regarding cash amount

and then, he found that the present petitioners and other

accused persons have committed the offences punishable

under Sections 13(1)(d) read with Section 13(2) of the

Prevention of Corruption Act, 1988 ( for short 'P. C. Act')

and under Section 34 of IPC and accused Nos.1 to 5 have

been prosecuted and present petitioners are arrayed as

accused Nos.2 and 1 respectively.

4. The learned Magistrate after perusing the

papers has taken cognizance and hence, issued process

against the present petitioners. Being aggrieved by

issuance of process, the petitioners have filed this writ

petition challenging the order of issuance of process by

taking cognizance and sought for quashing the entire

proceedings as against them.

5. The learned senior counsel for the petitioners

contended that the proceedings against Abdul Wajid have

been quashed and hence, the proceedings against the

present petitioners ought not to have been proceeded with

as they are sailing in the same boat and same rule is

required to be applied on the ground of principles of parity.

The other contention raised was that the raid was

conducted without registration of the FIR, which is not

acceptable. He asserted that there was no allegation of

demand and acceptance of bribe amount. He would

further submit that issuance of process by the learned

Magistrate is without application of mind, as he has taken

cognizance for the offences punishable under

Sections 13(1)(E) read with Section 13(2) of P. C. Act,

though the charge sheet has been filed for the offences

punishable under Sections 8, 13(1)(d) read with Section

13(2) of P. C. Act and Section 34 of IPC. Hence, it is

sought for quashing of the proceedings as against the

present petitioners by issuing writ in this regard.

6. Per contra, the learned Special Public

Prosecutor appearing for the respondent/Lokayukta

seriously resisted the petition on the ground that after

registration of the FIR only, raid was conducted and all

these issues have been already raised by the petitioners in

Criminal Petition No.15994/2013 and the same was

rejected by this Court as per the order dated 20.02.2015.

Hence, again these issues cannot be raised and

considering the evidence collected by the investigating

officer, the charge sheet has been laid and benefit of

quashing of proceedings pertaining to Abdul Wajid - ARTO

does not come in the way of prosecuting the present

petitioners. Hence, he would submit that the writ petition

is not maintainable and sought for rejection of the petition.

7. The proceedings against Abdul Wajid were

quashed by this Court as per the order passed in Criminal

Petition No.15127/2013 dated 19.07.2016. The said order

was not challenged by the State/Lokayukta. But, however,

it is also important to note here that prior to that itself, the

petition filed by the present petitioners in Criminal Petition

No.15994/2013 was dismissed by this Court as per the

order dated 20.02.2015, which is evident from Annexure-

E. The learned counsel for the petitioners has raised two

major points. One is regarding registration of FIR and

second one is ground of parity. But, as observed above,

the petitioners have already approached this court and

their petition under Section 482 of Cr.P.C. came to be

rejected. The ground of parity does not apply in their case.

8. Now coming to the issue regarding conducting

of raid prior to registration of the FIR, this point is already

urged by the petitioners in Criminal Petition

No.15994/2013 and the said contention was rejected by

this Court by dealing with them elaborately. The citations

relied upon by the petitioners were also considered and

that point has been answered in the negative holding that

the said ground is untenable. This Court has observed

regarding delay in sending the FIR to the Court and other

aspects and held that they are required to be considered

during the course of trial. This Court also held that the

raid was conducted after registration of the FIR only, the

offences alleged are cognizable offences and therefore, the

investigating officer has proceeded with the investigation.

Further, it is observed that the investigating officer after

receiving credible information and by confirming it, has

proceeded to conduct the raid. Hence, the issue of non

registration of the FIR before raid and other things does

not have any relevancy in this regard. This Court has

already considered the judgment relied upon by the

learned counsel for the petitioners in the case of Sri

Girishchandra and Another vs. The State of

Lokayukta Police, Yadgir reported in ILR 2013 KAR

983, while disposing of the earlier criminal petition filed by

the petitioners and analyzed the said citation. Hence,

again the same issue cannot be re-agitated after

submission of the charge sheet, as that issue has been

dealt in detail. Hence, the said ground has no relevancy in

this writ petition.

9. The other ground urged by the learned senior

counsel for the petitioners is that there is no evidence of

demand and acceptance and without proof of demand and

acceptance of bribe on the part of the present petitioners,

they could not have been prosecuted, as the ingredients of

Sections 8, 13(1)(d) read with Section 13(2) of P. C. Act

are not applicable. In this context, he has placed reliance

on the following decisions:

x (2013) 1 SCC 205 in the case of C.K.Jaffer Sharief vs. State (Through CBI).

x (2006) 1 SCC 401 in the case of T.

Subramanian vs. State of Tamil Nadu.

x (2000) 5 SCC 21 in the case of Meena (Smt) W/o. Balwant Hemke vs. State of Maharashtra.

x (2004) 2 SCC 9 in the case of R. Sai Bharathi vs. J. Jayalalitha and Others.

10. No doubt, in the present case, there is no

evidence regarding demand and acceptance of bribe

amount. But, however, it is to be noted here that during

the raid, the investigating officer has found cash of

Rs.13,000/- in the custody of a private person by name

Abdul Rasheed. There is no explanation as to how this

private person was allowed in RTO office, as the present

petitioners were in-charge officials of the RTO office.

Accused No.4-Mohammed Ibrahim was found in

possession of Rs.13,000/- cash amount and that was not

properly declared. Further, accused No.5 - Rohit Kumar

was claimed to be a private driver of petitioner No.2 and

he was found in possession of Rs.5,115/- and that was

also not properly declared. There is no denial by petitioner

No.2 herein that he has engaged this private driver. The

presence of accused No.5 being a private driver in RTO

office is not explained, who was found in possession of

unaccounted amount. Both the petitioners were the in-

charge officials of RTO office and further Rs.4,700/- found

on the table of the petitioners, which is declared by them

that it was the amount recovered from the penalty, but,

the receipts disclose that the penalty recovered was

Rs.6,800/- and the difference amount was not explained.

It is for the petitioners to give proper explanation in this

regard pertaining to unaccounted amount, but, that was

not done.

11. Apart from that, petitioner No.1 has made

declaration for having in possession of Rs.2,800/- in the

cash declaration register, but, he was found in possession

with only Rs.630/-. He made declaration that he has spent

the balance amount, but, he did not give account as to

how he could spent the amount of Rs.2,170/- and it

appears that cash declaration itself was made on higher

side. Hence, all these aspects are required to be enquired

during the trial. But, the petitioners without explaining the

same, being the in-charge officials of RTO office, want that

entire proceedings should be quashed.

12. In this context, it is necessary to consider the

Full Court dictum of the Hon'bel Supreme Court reported in

AIR 1962 SCC 195 in the case of Dhaneshwar Narain

Saxena vs. The Delhi Administration, wherein, the

Constitutional Bench has held that the misconduct by a

public servant need not be in connection with his own

official duty. The relevant portion of the said judgment

reads as under:

"........It is not necessary to constitute the offence under Cl. (d) of the section that the

public servant must do something in connection with his own duty and thereby obtain any valuable thing or pecuniary advantage. It is equally wrong to say that if a public servant were to take money from a third person, by corrupt or illegal means or otherwise abusing his official position, in order to corrupt some other public servant, without there being any question of his misconducting himself in the discharge of his own duty, he has not committed an offence under S.5(1)(d). It is also erroneous to hold that the essence of an offence under S. 5(2), read with S. 5(1)

(d), is that the public servant should do something in the discharge of his own duty and thereby obtain a valuable thing or pecuniary advantage."

13. Hence, it is evident from the observation made

by the Constitutional Bench that 'duty' and 'misconduct' go

ill together and even the corrupt or illegal means abusing

his official position, which attract the provisions of

misconduct. The said decision was pertaining to the

Prevention of Corruption Act of the year 1947 regarding

Section 5(1)(d) of the said Act and that is synonymous

Section 13(1)(d) of 1988 Act. Further, in a decision

reported in AIR 1960 SCC 548 in the case of C. I.

Emden vs. State of U. P., the Constitutional Bench of the

Hon'ble Supreme Court has dealt with word 'gratification'

and the presumption. It is held in the said decision that if

it is shown that the accused received the stated amount

and that the said amount was not legal remuneration then

the condition prescribed by the section is satisfied. It is

further observed that the word 'gratification' is construed

to mean money paid by way of a bribe then it would be

futile or superfluous to prescribe for the raising of the

presumption. This point is again clarified in a decision by

the Full Court of the Hon'ble Supreme Court reported in

AIR 1964 SCC 575 in the case of Dhanvantrai

Balwantrai Desai vs. State of Maharashtra, wherein, it

is held that if the accused is shown to have accepted the

money, which was not legal remuneration, the

presumption must be raised.

14. In the instant case, the evidence prima facie

discloses that certain undisclosed amount was recovered

and the petitioners were the in-charge officials of the

Check Post. It is for the petitioners to explain, failing

which, the presumption is required to be drawn against

them that the said amount is illegal gratification only.

Hence, considering these aspects, principle of demand and

acceptance does not apply to the case in hand as the

complaint was in a different contention regarding collecting

excess amount apart from the penalty/fine from the

drivers of the vehicles plying on the highway. Otherwise,

the very purpose of incorporating the provision of

presumption would be futile. The learned counsel for the

petitioners further places reliance on an unreported

decision of this Court in Writ Petition No.44850/2017 dated

15.12.2020. But, the facts and circumstances of the said

case entirely different and they cannot be made applicable

to the present case. Hence, in view of the clarification

given by the Constitutional Benches of the Hon'ble

Supreme Court referred to above, the citations relied upon

by the learned counsel for the petitioners referred to above

cannot be made applicable to the facts and circumstances

of the case present case.

15. Now the last point urged by the learned

counsel for the petitioners is regarding non application of

mind by the learned Special Judge while taking

cognizance. He has invited the attention of the Court to

the fact that the charge sheet has been submitted for the

offence punishable under Section 13(1)(d) read with

Section 13(2) of the P.C. Act, but, the cognizance has been

taken by the learned Magistrate under Section 13(1)(E)

read with Section 13(2) of the P.C. Act. He contended that

this clearly establish that the learned Magistrate has not

applied his mind and in this regard, he places reliance on

the following decisions:

x Sunil Bharti Mittal vs. Central Bureau of Investigation reported in (2015) 4 SCC 609.

x The Authorized Signatory, M/s. ICICI Bank Ltd., vs. The State by its Regional Transport Officer reported in ILR 2015 KAR 3408.

x Mehmood Ul Rehman vs. Khazir Mohammad Tunda and Another reported in (2015) 12 SCC

420.

x Rajendra Rajoriya vs. Jagat Narain Thapak and Another reported in 2018 SCC On-Line SC 159.

16. On the basis of these citations, the learned

counsel for the petitioners would submit that taking

cognizance is not a casual act and the Magistrate is

required to apply his mind and is required to satisfy

himself. It is further held in the above cited decisions that

for taking of the cognizance, it is necessary that there

should be application of mind by the Magistrate and his

satisfaction that allegations if proved, would constitute an

offence. On all this point, he argued that the charge sheet

was submitted under Section 13(1) (d) read with Section

13(2) of the P. C. Act, but, the cognizance was taken

under Section 13 (1)(E) read with Section 13(2) of the P.

C. Act, which itself discloses that there is non application

of mind by the learned Magistrate. But, it is to be noted

here that sub Section 13(1)(E) does not find place in the

statute. However, non charge sheeted person can be

summoned as an accused if prima facie incriminating

materials are found by the Magistrate. Further, before

taking cognizance of the offence, the Magistrate is required

to consider whether the report of the police discloses

commission of the offence and is required to farm an

opinion in this regard. It is also observed in the above

reported decisions that the Magistrate cannot refuse to

issue process merely on the ground that it is unlikely

resulting in conviction. Further, before taking cognizance,

the Magistrate has to satisfy himself about satisfactory

grounds to proceed with the complaint, but, he is not

supposed to consider whether there is sufficient grounds

for conviction. Hence, it is evident that it is an application

of mind and it is not prejudiced the accused in any way.

17. In this context, it is necessary to consider the

observations made by the Hon'ble Supreme Court reported

in (2012) 4 SCC 516 in the case of Rattiram and

Others vs. State of Madhya Pradesh, wherein, Apex

Court has an occasion to consider the illegality and

irregularity. It is specifically observed that the trial would

only be vitiated if failure of justice has in fact been

occasioned and thereby accused has been prejudiced by

irregularity. In the instant case, there appears to be

typographical error and it is evident that capital letter 'E'

used which is non-existing clause in the statute. However,

the entire records clearly establish that there is prima facie

material and the learned Sessions Judge/Special Judge

satisfied himself in this regard. Apart from that, the

accused/petitioners have not been prejudiced by this act in

any way. However, for that reason only, the entire

proceedings cannot be quashed and again even if the

matter remitted to the Special Judge to apply his mind and

to reconsider the fact, it amounts to repeating the process

again without any purpose being served except further

delay.

18. The matter is pending since 2013 and on one

or the other ground, it is being prolonged. The order of

the learned Sessions Judge/Special Judge discloses that it

is only irregularity which does not prejudice the accused in

any way as the right of the accused to defend the case is

unaffected. Hence, in view of the decision reported in

Rattiram referred to above, the proceedings are not

vitiated for a technical defect committed by the Sessions

Judge/Special Judge.

     19.      The      learned      counsel      for        the

respondent/Lokayukta      has     placed   reliance    on   an

unreported decision of the Hon'ble Supreme Court in

Criminal Appeal No.819/2019 (arising out of SLP (Crl)

No.9009/2017) dated 01.05.2019 in the case of State by

Karnataka Lokayukta vs. M. R. Hiremath, wherein the

Hon'ble Apex Court has clearly held that the parameters

which govern the exercise of the jurisdiction have found

expression in several decisions of the Hon'ble Supreme

Court. It is further held that at the stage of considering

the application for discharge, the Court must proceed on

the assumption that the material which has been brought

on record by the prosecution is true and evaluate the

material in order to determine whether the facts emerging

from the material taken on its face value disclose the

existence of the ingredients necessary to constitute the

offence. In the instant case also, there is prima facie

material as the investigating officer after holding

preliminary enquiry as per the decision of the decision of

the Hon'ble Supreme Court reported in (2014) 2 SCC 1 in

the case of Lalitha Kumari vs. Government of U.P. has

proceeded for raid after registration of the FIR. Further,

certain irregularities in the form of unaccounted amount is

also noticed and there is presumption in favour of the

prosecution under Section 20 of the P. C. Act and it is for

the accused to rebut the said presumption as held in the

above referred decisions of the Constitutional Benches of

the Hon'ble Supreme Court. Hence, when no prejudice is

caused to the accused and only on the technical grounds,

the entire proceedings cannot be quashed and therefore,

the said argument of the learned counsel for the

petitioners also is not substantiated. The arguments urged

regarding FIR and other things have been already

considered by this Court as observed earlier and findings

have been given and that can not be re-agitated as it

amounts res judicata. Hence, the petition is devoid of any

merits and requires to be rejected. Accordingly, I proceed

to pass the following:

ORDER

The petition is rejected.

Sd/-

JUDGE Srt